Thursday, July 7, 2016

"No one can breathe in this atmosphere."

Jonathan Rapping, of Gideon's Promise, has it right. From our station as public defense lawyers, we speak from an uncommon place. And our message, in part, is this:

Compliance is not consent. There is no such thing as consent, not anymore. Not if you are a black man. Or Latino. Or a gang member. Or young. Or impoverished. Or _______. The government can no longer credibly say that you “voluntarily consented” to stop, to speak, to get out of the car, to have your pockets searched, your car, your phone, your homes.

Not after these videos. Videos we value evidentiarily, but videos played in a continuous, numbing loop that eventually diminishes the personal tragedy, even as for others, every replay is a fresh hell. So mothers and fathers and the community and media and so many other voices say, “Comply!” so that you are not the next video. Remember the LAPD cop who wrote for the Washington Post, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”

But when you do comply, that is not consent. There is no such thing as a "consensual search," not anymore.

That is our message, what we will scour every case for, the context for every conversation we have with our clients, the framework for our Fourth Amendment challenges. The "right to refuse consent" is no longer an option. Read Schneckclothe v. Bustamonte again, as offensive as it is. Consent, it says, is evaluated by all of the circumstances that bear on the defendant.

The totality of the circumstances must now comprehend the videos and the voices. These are no longer “isolated instances” to be judged only within the moment, on that street corner, by the words spoken right then, from the perspective of the powerful, as “the world dies into explanations.” The Court’s rationale, if it ever was rational, behind Schneckclothe, Florida v. Bostick, United States v. Drayton, and United States v. Mendenhallcannot survive in this atmosphere.

Just two weeks ago, Justice Sotomayor cataloged the racist Fourth Amendment failures of the Court, including the decision she dissented from, Utah v. Strieff. She closed with this,

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.